Bar Council urges Ministry of Justice to go further in changing provisions for counsel’s fees in new FRC regime

20 September 2023

Sam Townend KC

The Ministry of Justice (MoJ) needs to go further on changes to the new fixed recoverable costs (FRC) regime coming into force next month when it comes to counsel’s fees, the Bar Council has insisted.

A joint response with the Personal Injury Bar Association (PIBA) to the Ministry of Justice’s consultation on changes to the FRC regime also revealed for the first time publicly that the pair sent the MoJ a letter before action in June, to which they received a response at the end of August.

The Bar’s key issues are uprating the trial advocacy fees for inflation and providing for recovery of advocacy fees in cases which are settled late or vacated.

The response said that, in cases where a fast-track or intermediate track case settled or was otherwise vacated up to 24 hours before trial, the wronged party should be able to recover the whole of the fee incurred in engaging a trial advocate who has prepared the case, advised on its merits and enabled the settlement. It suggested 75% recovery where vacated up to 48 hours beforehand.

“That counsel should be entitled to be paid for work done is a basic principle that should be agreed on all sides. The MoJ considers that there may be merit in this suggestion, but there is, in fact, no rational contrary argument,” the Bar Council said.

It continued that, since 2019, PIBA members in particular have reported “a huge problem with courts adjourning fast-track trials at short notice due to lack of judicial resource”. A chambers in north-west England reported that 202 cases were either settled or vacated within two days of trial in the six months to August 2023.

It also argued that a proper rate of inflation – “which reflects the actual cost of legal services (not some more general benchmark)” – should be applied to the fixed advocacy fee and put forward compromise figures. The fee has not increased since 2013 and, in some cases, since 2007.

Sam Townend KC, vice-chair of the Bar Council, said: “Positive steps have been taken by the Ministry of Justice to ameliorate some of the problems with the fixed recoverable costs scheme in advance of its expansion. We particularly welcome the commitment to provision for inquest costs to be separately recoverable, though we have comments on the detail.

“However, there are aspects of the reforms that remain unreasonable and arguably irrational.

“The costs regime should help, not hinder, settlement and getting the backlog down, especially where improvements to the scheme cost the taxpayer nothing more. And all workers, including barristers, should be paid a reasonable fee for work done, otherwise they will be inclined to stop doing that work.

“A proper rate of inflation must be applied to the fixed advocacy fee. The alternative is a two-tier system where those who can afford it pay more senior barristers to defend the claim, while the claimant victims are able only to employ less experienced practitioners.”

The response agreed that it was “sensible to introduce a simplified assessment process for FRC cases which give rise to costs disputes” but opposed including clinical negligence cases in the FRC where both breach of duty and causation have been admitted.

Noting there was no consultation on including clinical negligence cases in FRC, it described the proposals as “practically unworkable”.

The Bar Council explained: “A solicitor having conduct of a case has to investigate the facts prior to sending a letter of claim. Such costs may be considerable, involving detailed investigation, and the instructions of experts. Such costs are reasonably incurred without reference to the level of damages which may be awarded and are not suitable for FRC.”

The Bar Council was due to meet with MoJ officials last week to discuss these issues further. We reported on the ACL’s response to the consultation here.

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20 Sep 2023

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